Gerhard Anschütz

from Wikipedia, the free encyclopedia

Gerhard Anschütz (born January 10, 1867 in Halle (Saale) , † April 14, 1948 in Heidelberg ) was an important German constitutional law teacher and leading commentator on the Weimar constitution .

Live and act

Gerhard Anschütz came as the son of the professor for civil law at the University of Halle , August Anschütz , and his wife Anna, geb. Volkmann , to the world. After completing a one-semester general course at the University of Geneva , he studied law at the Universities of Leipzig , Berlin and Halle. He passed the first state examination in law in 1889 before the higher regional court in Naumburg . In 1891 he was in Halle at Edgar Loening with the work "Critical Studies on the theory of legal principle and formal laws" doctorate . The assessor exam followed in Berlin in 1894. There , Anschütz completed his habilitation in 1896 with the text “Compensation claim from property damage through lawful handling of state power”. In the winter semester of 1896/97 he took up his work as a private lecturer and in 1899 followed a call to the University of Tübingen for the chair of constitutional and international law. As early as 1900, he moved to the Ruprecht-Karls-Universität Heidelberg as the successor to the late Georg Meyer , where he represented public law together with Georg Jellinek . In 1908 he followed a call to the University of Berlin. There he was appointed a secret councilor in 1910. In 1916 he returned at his own request to the University of Heidelberg, where he taught until his retirement in 1933 as "Professor of German constitutional and legal history and German imperial and state law including administrative law and police science, as well as church law".

Family grave of Gerhard Anschütz. His son Willi Anschütz, who died in 1917, rested here with him, his wife Else Anschütz, née Herold, his son Hans Anschütz and his widow. Heidelberg Bergfriedhof (Section G)

Anschütz came from the liberal, Protestant educated middle class of the empire and remained shaped by its values ​​throughout his life. He adored Otto von Bismarck as the founder of an empire and saw a positive fact in the strong nation-state he had created . Politically nationally-liberal , he initially unreservedly advocated the constitutional monarchy in Prussia and the empire. But already with the publication of his habilitation lecture "The current theories about the concept of legislative power and the royal ordinance law according to Prussian constitutional law", Anschütz positioned himself as a progressive representative of his guild by denying the monarch an independent ordinance law and thus against those of him designated "crypto absolutists". During the First World War , Anschütz clearly switched to the reform-oriented camp and spoke out in favor of abolishing the Prussian three-class suffrage , for the parliamentarization of the Reich and against annexations . It was almost logical that after the revolution he was asked by the State Secretary of the Interior, Hugo Preuss , to take part in the preliminary discussions on the drafting of the constitution and to take over the management of constitutional affairs in the Reich Ministry of the Interior; Anschütz refused this out of consideration for his professorship in Heidelberg. While his contribution to the creation of the Weimar Constitution was still small, with the publication of his constitutional commentary in 1921 (four revisions and 14 editions until 1933), Anschütz quickly became the leading interpreter of the applicable constitutional law. In addition, he was one of those constitutional lawyers who unreservedly supported the democratic republic, with close ties to the DDP : his Rector's speech “Three central ideas of the Weimar Constitution” from 1922 testifies to this, as does his commitment to Friedrich Ebert in his Magdeburg trial and his work as an expert in constitutional matters. The high point of his commitment to the republic was the Prussia versus Reich trial before the State Court of Justice, in which he acted as one of the prussian government's procurators.

Anschütz drew personal consequences from the appointment of Adolf Hitler as Chancellor and the seizure of power by the National Socialists and applied to the Baden Minister of Education for his retirement. The application for emeritus status of March 31, 1933 is a document of his personality and has guaranteed him high recognition to this day; In its central passage it says: “My teaching assignment extends primarily to German constitutional law. According to my longstanding conviction, for which I request the consent of the Minister, this subject places demands on the lecturer that are not only of a legal but also of a political nature. The task of the constitutional law teacher is not only to impart knowledge of German constitutional law to the students, but also to educate the students in the sense and spirit of the applicable constitutional order. This requires a high degree of internal connection between the lecturer and the state system. My duty to be honest requires me to confess that I cannot at the moment find this bond with the new German constitutional law, which is now emerging. ”The request was granted immediately.

During the Third Reich , Anschütz lived in seclusion and hardly published. As a declared Nazi opponent, he worked as an advisor to the US military government in Frankfurt am Main after 1945 . In this function he was one of the fathers of the founding and constitution of the state of Greater Hesse .

Gerhard Anschütz was married to Else Herold (1873–1932); the couple had three children, including the lawyer Hans Anschütz (1901–1980). The family grave is located in the Heidelberg Bergfriedhof in Department G.

plant

Anschütz was the "representative of two epochs of constitutional law" ( Walter Jellinek ), constitutionalism in the Empire and the democratic republic of Weimar. For both epochs he presented authoritative representations, the reception of which suffered from the fact that the legal systems of the state collapsed soon after or before the works were published. In this way, Anschütz 'work unintentionally acquired legal historical significance, because it represented both the constitutional monarchy before 1918 and the Weimar Republic at the highest legal level. This applies initially to the commentary published in 1912 The Constitutional Document for the Prussian State of January 31, 1850 , of which only a first volume appeared; this work set new standards for legal commentary literature and was called the “prototype” of the “scientific constitutional commentary”. The last, seventh edition of Georg Meyer's textbook on constitutional law , which Anschütz had been working on since Meyer's death, did not appear until 1919 and was therefore of historical importance from the start. The same thing happened in the end of the standard commentary The Constitution of the German Empire of August 11, 1919 , published since 1921 , the last edition of which appeared in March 1933. And the representative handbook of German constitutional law , published together with his friend Richard Thoma , fell into the final phase of the republic. In the foreword to the constitutional commentary, Anschütz had formulated in view of the "seizure of power" in progress: "The decision to publish a commentary on the Reich constitution today, despite all this, again revised, requires a small amount of trust and confidence."

In terms of method, Anschütz is to be assigned to legal positivism , to which he also confessed himself to the end. His position can and must be demarcated from the direction represented by Carl Friedrich von Gerber and Paul Laband , whose “legal-constructive approach” Anschütz rejected, and from Hans Kelsen's pure legal theory , for the abstraction of which he lacked understanding. In contrast, his own position is characterized as “moderate positivism”, “historically based positivism” or “democratic positivism”. Like all legal positivists, Anschütz focused on positive law, state law; He wanted to keep everything extra-juridical and metaphysical away from law, in particular he strictly rejected natural law in any form. Anschütz 'specific position can be seen in the historical method, which seeks to determine the meaning and purpose of norms from the history of their origin. Anschütz also differs from the term jurisprudence of other legal positivists in that he reveals his own political position. As an important representative of legal positivism and leading constitutional commentator, Anschütz became the representative of an orthodoxy in the Weimar Republic, against which innovators of very different origins ( Smend , Schmitt , Heller ) opposed in the second half of the 1920s , which led to the methodological dispute in Weimar constitutional law .

In terms of content, the methodological dispute was primarily carried out on the field of two constitutional questions, on which Anschütz took a clear position: on the one hand, it was about the binding of the legislature to fundamental rights, especially the principle of equality (Art. 109 WRV) postulated by Erich Kaufmann and Gerhard Leibholz . , and the resulting judicial review right; on the other hand, the thesis, prominently represented by Carl Schmitt, of a constitutional core that is withdrawn from the constitution-amending legislature under current constitutional law. Anschütz rejected both approaches out of his positivistic attitude. The binding of the democratically legitimized legislature to the principle of equality was out of the question for Anschütz because the resulting judicial review right would have to politicize the judiciary. In addition, Anschütz was fundamentally alien to the constitutional theoretical concept of the primacy of the constitution over the simple law, which presupposes a judicial review right. This is also the basis of his argument against Schmitt's thesis that the constitutional core cannot be changed, which is based on the distinction between Pouvoir constituant and Pouvoir constitué and postulates that the constitution-amending legislature should not revise the basic decisions of the constitution-maker. In his commentary on Article 76 of the Weimar Constitution, Anschütz rejected this opinion. As a positivist, he pointed out that this doctrine found "no basis in current law"; a distinction between legislative and constitutional power is alien to German tradition and also to current constitutional law, in Anschütz 'classic formulation: "The constitution is not above the legislature, but at the disposal of the same (...)."

reception

The intellectual situation after 1945 did not favor the reception of Anschütz's work. Although he continued to work as an exemplary constitutional commentator and co-founder of the literary genre constitutional manual in the Federal Republic and found respect for his attitude in 1933. But the zeitgeist was characterized by the renaissance of natural law and material value philosophy against legal positivism and its representatives. The Basic Law was designed in 1948/49 as a departure from the Weimar Constitution in essential aspects. Precisely those doctrines that Anschütz had rejected in the methodological dispute found their way into the new constitution: Article 1.3 of the Basic Law tied the legislature to fundamental rights, Article 79.3 of the Basic Law received Schmitt's doctrine of the unalterable core of the constitution. The positivists of the Weimar years were accused of their relativism of values , which enabled Hitler to take the legal path to power (Anschütz 'comment on Art. 76 WRV was an impressive example of this relativism). The doctrine of constitutional law in the early Federal Republic was also shaped by the anti-positivists of the Weimar Republic, Rudolf Smend and Carl Schmitt, who educated schools until the 1970s . So the paradoxical situation arose that the democratic new beginning with the anti-positivist, but at the same time anti-democratic theories of the Weimar period was undertaken against the positivist, but at the same time democratic teachings.

It is only recently that the Weimar right-wing positivists, including Gerhard Anschütz, have regained greater recognition, as exemplified by the works of Horst Dreier and Kathrin Groh .

Fonts (selection)

  • The constitutional charter for the Prussian state of January 31, 1850. A commentary for science and practice . Häring, Berlin 1912.
  • Georg Meyer: Textbook of German constitutional law , edited by Gerhard Anschütz. Duncker & Humblot, (8th edition) Berlin 2005 (unchanged reprint of the 7th edition from 1919, introduced by Ernst-Wolfgang Böckenförde ).
  • Three guiding principles of the Weimar Constitution. Speech given at the annual celebration of Heidelberg University on November 22, 1922 . Mohr, Tübingen 1923.
  • with Richard Thoma (ed.): Handbuch des Deutschen Staatsrechts , 2 volumes. Mohr, Tübingen 1930/32.
  • The constitution of the German Reich of August 11, 1919. A commentary for science and practice . Stilke, 14th edition, Berlin 1933.
  • Out of my life. Memories by Gerhard Anschütz , edited and introduced by Walter Pauly . Klostermann, Frankfurt am Main 1993.

literature

  • Ernst-Wolfgang Böckenförde: Gerhard Anschütz . In: Ernst-Wolfgang Böckenförde: Law, State, Freedom . Suhrkamp, ​​Frankfurt / M. (expanded edition) 2006, pp. 367–378. ISBN 3-518-28514-9 .
  • Horst Dreier : A constitutional law teacher in times of upheaval: Gerhard Anschütz (1867–1948) . In: ZNR 20 (1998), pp. 28-48.
  • Dagmar Drüll: Heidelberger Gelehrtenlexikon 1803-1932 . Edited by the rectorate of the Ruprecht-Karls-Universität-Heidelberg. Springer, Berlin, Heidelberg, Tokyo 2012, ISBN 978-3642707612 .
  • Ernst Forsthoff : Gerhard Anschütz . In: Der Staat 6 (1967), pp. 139–150.
  • Kathrin Groh: Democratic constitutional law teacher in the Weimar Republic. From constitutional law to the theory of the modern democratic constitutional state . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150222-4 .
  • Werner Heun : Gerhard Anschütz (1867–1948). From liberal constitutionalism to a democratic republic . In: Stefan Grundmann , Michael Kloepfer , Christoph G. Paulus , Rainer Schröder , Gerhard Werle : Festschrift 200 Years of the Law Faculty of the Humboldt University in Berlin. History, present, future . De Gruyter, Berlin / New York 2010, pp. 455–475. ISBN 978-3-89949-629-1 .
  • Hans Nawiasky :  Anschütz, Gerhard. In: New German Biography (NDB). Volume 1, Duncker & Humblot, Berlin 1953, ISBN 3-428-00182-6 , p. 307 ( digitized version ).
  • Walter Pauly: Gerhard Anschütz. An Introduction . In: Arthur Jacobson and Bernhard Schlink (Ed.): Weimar, A Jurisprudence of Crisis . University of California Press, Berkeley, Los Angeles, London 2000, pp. 128-131.
  • Walter Pauly: Anschütz, Gerhard. In: Michael Stolleis (Ed.): Juristen. A biographical lexicon. From antiquity to the 20th century. CH Beck, Munich 1995, ISBN 3-406-39330-6 , p. 36 f.
  • Reichs Handbuch der Deutschen Gesellschaft - The handbook of personalities in words and pictures , first volume. Deutscher Wirtschaftsverlag, Berlin 1930, p. 29, ISBN 3-598-30664-4 .
  • Christian Waldhoff : Gerhard Anschütz (1867–1948) . In: Peter Häberle , Michael Kilian , Heinrich Wolff : Constitutional law teacher of the 20th century. Germany, Austria, Switzerland . De Gruyter, Berlin / Boston 2015, pp. 93-109, ISBN 978-3-11-030377-3 .

Web links

Individual evidence

  1. ↑ According to the ministerial appointments, cited by Ernst-Wolfgang Böckenförde : Gerhard Anschütz (1867–1948) . In: Ernst-Wolfgang Böckenförde: Law, State, Freedom , Frankfurt / M. 2006, pp. 367-378, here: p. 367.
  2. ^ Biographical information based on Christian Waldhoff : Gerhard Anschütz (1867–1948) . In: Peter Häberle et al. (Ed.): Staatsrechtslehrer des 20. Jahrhundert , Berlin / Boston 2015, pp. 93-109, here: pp. 101 ff.
  3. ^ Ernst Forsthoff : Gerhard Anschütz . In: Der Staat 6 (1967), pp. 139–150, here: pp. 140 f.
  4. ↑ Ernst-Wolfgang Böckenförde: Gerhard Anschütz (1867-1948) . In: Ernst-Wolfgang Böckenförde: Law, State, Freedom , Frankfurt / M. 2006, pp. 367-378, here: pp. 374 f.
  5. ^ Heinrich August Winkler : The long way to the west. Volume 1. CH Beck, Munich 2000, p. 456.
  6. ^ Werner Heun: Gerhard Anschütz (1867–1948) . In: Stefan Grundmann et al.: Festschrift 200 Years of the Law Faculty of the Humboldt University in Berlin , Berlin / New York 2010, pp. 455–475, here: p. 456.
  7. ↑ Quoted from Ernst Forsthoff: Gerhard Anschütz . In: Der Staat 6 (1967), pp. 139–150, here: p. 139.
  8. ↑ Quoted from Christian Waldhoff: Gerhard Anschütz . In: Peter Häberle et al. (Ed.): Staatsrechtslehrer des 20. Jahrhundert , Berlin / Boston 2015, pp. 93–109, here: p. 93.
  9. ^ So Ernst Forsthoff: Gerhard Anschütz . In: Der Staat 6 (1967), pp. 139–150, here: p. 143.
  10. ↑ Quoted from Christian Waldhoff: Gerhard Anschütz . In: Peter Häberle et al. (Ed.): Staatsrechtslehrer des 20. Jahrhundert , Berlin / Boston 2015, pp. 93–109, here: p. 95 note 16.
  11. ^ So Werner Heun: The constitutional positivism in the Weimar Republic. A conception in conflict. In: Der Staat 28 (1989), pp. 377-403, here: p. 379.
  12. ↑ Both characterizations in Michael Stolleis: History of public law in Germany. Volume 2: 1800-1914 , CH Beck, Munich 1992, p. 351 f.
  13. ^ Christian Waldhoff: Gerhard Anschütz . In: Peter Häberle et al. (Ed.): Staatsrechtslehrer des 20. Jahrhundert , Berlin / Boston 2015, pp. 93–109, here: p. 97.
  14. ^ Werner Heun: Gerhard Anschütz (1867–1948) . In: Stefan Grundmann et al. (Hrsg.): Festschrift 200 years of law faculty at the Humboldt University in Berlin , Berlin / New York 2010, pp. 455–475, here: p. 463 f.
  15. ↑ In addition Michael Stolleis: History of Public Law in Germany. Volume 3: 1914-1945 , Munich 1999, pp 189-192.
  16. ^ Christian Waldhoff: Gerhard Anschütz (1867–1948) . In: Peter Häberle et al. (Ed.): Staatsrechtslehrer des 20. Jahrhundert , Berlin / Boston 2015, pp. 93-109, here: p. 106.
  17. ↑ reference to Carl Schmitt: Constitutional Law , 8th edition, Berlin 1993, pp 102-112.
  18. ↑ Gerhard Anschütz: The Constitution of the German Reich , 14th edition 1933, p. 400–408 (commentary on Art. 76 WRV), quotations p. 401 and 405.
  19. ↑ Background: Jerzy Zajadło: Overcoming legal positivism as a basic value of the Basic Law. The constitutional topicality of the natural law problem , in: Der Staat 26 (1987), pp. 207-230.
  20. ↑ Typical in this respect: Ernst Forsthoff: Gerhard Anschütz . In: Der Staat 6 (1967), pp. 139–150.
  21. ^ Hasso Hofmann : Philosophy of Law after 1945. On the intellectual history of the Federal Republic of Germany . Berlin 2012, pp. 10-25.
  22. ^ In addition to his work on Anschütz, Horst Dreier: Legal theory, state sociology and theory of democracy with Hans Kelsen , Baden-Baden 1986 and Richard Thoma: Rechtsstaat - Demokratie - Grundrechte. Selected essays from five decades , ed. and introduced by Horst Dreier, Tübingen 2008.
personal data
SURNAME Anschütz, Gerhard
BRIEF DESCRIPTION German constitutional lawyer
DATE OF BIRTH January 10, 1867
PLACE OF BIRTH Halle (Saale)
DATE OF DEATH April 14, 1948
Place of death Heidelberg